U.S. v. Robles-Pantoja, ROBLES-PANTOJ

• Decision Date: 26 October 1989
• Docket Number: No. 88-5558,ROBLES-PANTOJ,D,88-5558
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Javierefendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1250

887 F.2d 1250

UNITED STATES of America, Plaintiff-Appellee, v. Javier ROBLES-PANTOJA, Defendant-Appellant.

No. 88-5558

Summary Calendar.

United States Court of Appeals,

Fifth Circuit.

Oct. 26, 1989.

Javier Robles-Pantoja, El Reno, Okl., pro se.

LeRoy Morgan Jahn, Asst. U.S. Atty., Helen M. Eversberg, U.S. Atty., Chris Gober, Asst. U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before POLITZ, GARWOOD and JOLLY, Circuit Judges.

GARWOOD, Circuit Judge.

Defendant-appellant Javier Robles-Pantoja (Robles) appeals his conviction, following a jury trial, of one count of conspiracy to distribute cocaine in violation of 21 U.S.C. Sec. 846 (count one), and one count of distribution of cocaine in violation of 21 U.S.C. Sec. 841(a)(1) (count two). Robles challenges the sufficiency of the evidence to support his conviction on each count, alleges prosecutorial misconduct, and raises several specific challenges to his sentence. We affirm.

Facts and Proceedings Below

Robles was convicted of a conspiracy to sell cocaine to Rudolf A. Gonzalez (Agent Gonzalez), who unbeknownst to the conspirators was an undercover agent with the Drug Enforcement Administration (DEA). The government's evidence indicated that with the assistance of Cesar Fuentes-Castillo (Castillo), a government informant, Agent Gonzalez had agreed with Miguel Franco (Franco) to purchase ten kilograms of cocaine. Franco's intended supplier, however, proved unable to provide the promised quantity. Franco's efforts to find a replacement source led him to Salvador Soto (Soto), who introduced him to a man known as "El Gordo," who ultimately arranged a meeting between Franco and Robles in a Forth Worth hotel room on February 19, 1987.

Apparently to demonstrate his seriousness during that first meeting with Robles, Franco called Agent Gonzalez from Robles' hotel room and confirmed a purchase amount of ten kilograms while Robles listened in on the call. Afterwards, Robles indicated that he might be able to supply that quantity. Robles then called Francisco Hernandez-Gonzalez (Hernandez-Gonzalez), who joined the conspirators at the hotel. To ensure secrecy, Robles, Franco, and Hernandez-Gonzalez all met in the bathroom of the hotel to negotiate the details of the deal.

When they reached an agreement, Hernandez-Gonzalez left the hotel to make arrangements. About six hours later he returned and told Franco that the arrangements had been made. The conspirators agreed to meet in San Antonio, and Franco gave Robles the telephone number of the hotel where Agent Gonzalez had said he could be reached. That night, Robles, Hernandez-Gonzalez, Franco, and Soto drove to San Antonio.

Franco and Soto arrived the next morning at about five o'clock. They met with the informant Castillo at his hotel. After breakfast, Franco and Castillo met with Agent Gonzalez and a second undercover DEA agent working with him, Robert Hernandez (Agent Hernandez). Franco told the undercover agents that he had arranged the transaction with Robles and that the sale would be made in two five-kilogram installments. Afterwards, Castillo and Franco returned to Castillo's hotel room to wait for Robles' call.

That call finally came at about half past noon. Robles assured Franco that the ten kilograms of cocaine was in San Antonio at Robles' hotel. Franco went to Robles' hotel, where Franco confirmed that the cocaine would be delivered to the purchasers in two five-kilogram installments. Franco then took a sample of cocaine from Robles to show to Agents Gonzalez and Hernandez.

Franco left Robles' hotel and returned to meet with the undercover DEA agents. He showed them the cocaine sample, and they showed him a large quantity of "flash money," to demonstrate their willingness and ability to complete the deal. Franco then called Robles to verify that he had seen the money. Robles told Franco to bring the purchasers over to Robles' hotel with the cash to consummate the first purchase.

The DEA agents had "serialized," or recorded the serial numbers of $36,000 of the cash, which was all they were authorized to release to the targets. At the last minute, Agent Gonzalez told Franco he wanted to purchase just one kilogram in the first transaction, so he could verify its purity. After some hesitation, Franco agreed to this, and both he and the agents proceeded to Robles' hotel with $32,000 of the serialized cash, the remaining $4,000 of which was to be paid to Franco for finding the suppliers.

When they arrived at the hotel, Franco called Robles from a pay phone outside the lobby to tell him that they had arrived and that the initial purchase would be for just one kilogram. Robles agreed. Franco and Agent Gonzalez then went to Robles' room. In the room at the time were Robles, Gonzalez-Hernandez, and two other men, Natividad Moya (Moya) and Ricardo Gonzalez. Robles hid his hand underneath a pillow and Ricardo Gonzalez hid his in his coat, possibly indicating that both were concealing weapons. Agent Gonzalez presented the $32,000 in cash, which Robles and Moya counted at Gonzalez-Hernandez's instruction. Finally, Gonzalez-Hernandez and Ricardo Gonzalez left the room and returned with a package of what the government's forensic chemist testified was 996 grams of 97% pure cocaine. After some further discussion, the exchange was made and the parties agreed to meet again in an hour to complete the sale of the remaining nine kilograms. Franco and the DEA agents left Robles' hotel.

Shortly afterwards, Robles called the hotel room where Soto and the informant Castillo were waiting for Franco's return. Robles told Soto that something was wrong, that the antenna on Agent Gonzalez's van made him think they were narcotics officers, that the rest of the deal was off, and that he and the other suppliers were taking the cocaine and leaving. While Soto was out of the room, Castillo called Agent Hernandez and warned him that the deal had gone sour. At that time, the agents terminated the investigation and arrested the participants. When Robles was arrested, no drugs or weapons were found on his person, but he did have $2,000 of the serialized cash in his possession.

Robles was indicted, together with five of the other participants in this transaction, for one count of conspiracy to distribute cocaine and one count of distribution of cocaine in violation of 21 U.S.C. Secs. 841(a)(1) and 846. He was tried before a jury in a joint trial with Soto and Gonzalez-Hernandez in February 1988. ¹ At the close of the government's case, Robles moved for acquittal. This motion was denied, and he failed to renew it at the close of all the evidence. The jury convicted Robles on both counts, and the district court sentenced him to ten years on the conspiracy count and ten years on the distribution count, to run consecutively. A four-year special parole term was imposed to follow the distribution count confinement.

Soto and Robles appealed together to challenge the sufficiency of the evidence to sustain their convictions. Robles subsequently moved to have his counsel discharged and to proceed pro se in a separate appeal. We granted the motion and severed the appeals. We affirmed Soto's conviction and sentence in a recent unpublished opinion, United States v. Soto, 874 F.2d 813 (5th Cir.1989), and now we consider Robles' sufficiency challenge, as well as four additional issues he raises in his pro se brief to this Court.

Discussion

I. The Sufficiency of the Evidence

Robles appeals the sufficiency of the government's evidence to sustain the jury's decision to convict him of conspiracy to distribute cocaine. He contends that the government "never presented any evidence that the Appellant was indeed a part of the alleged conspiracy." We find otherwise.

"The usual standard applied when insufficiency of evidence to support a conviction is raised is whether, viewing the evidence presented and all inferences reasonably drawn therefrom in the light most favorable to the government, any rational trier of fact properly could have found each element of the crime beyond a reasonable doubt." E.g., United States v. Ruiz, 860 F.2d 615, 617 (5th Cir.1988). However, when the defendant moves for judgment of acquittal at the close of the government's case in chief, and defense evidence is thereafter presented but the defendant fails to renew the motion at the conclusion of all the evidence, he waives objection to the denial of his earlier motion. Id. Under those circumstances, appellate review of a claim of insufficiency of evidence will be "limited to the determination of 'whether there was a manifest miscarriage of justice.' Such a miscarriage would exist only if the record is 'devoid of evidence pointing to guilt.' " Id. (quoting United States v. Ivory, 468 F.2d 613, 614 (5th Cir.1972)). The record in this case is not "devoid of evidence pointing to guilt." In any event, the evidence here is more than sufficient to have sustained the conviction even if Robles had made a timely motion for acquittal at the close of all the evidence.

To sustain the conspiracy conviction, the government must establish that a conspiracy to unlawfully distribute cocaine existed, that Robles knew of the conspiracy, and that he intentionally joined and participated in it. E.g., United States v. Prieto-Tejas, 779 F.2d 1098, 1102 (5th Cir.1986). The jury may infer a conspiracy agreement from circumstantial evidence, e.g., United States v. Williams-Hendricks, 805 F.2d 496, 502 (5th Cir.1986), and may rely upon presence and association, along with other evidence, in finding that a conspiracy existed. E.g., United States v. Magee, 821 F.2d 234, 239 (5th Cir.1987).

Robles' argument that the government did not produce any evidence of his participation in a conspiracy is predicated on the assumption that the testimony of Franco was merely allegation, as opposed to "factual...